Put Supreme Court 'Originalists' to the Test

By Morton Mintz

No one could affirm a stricter dedication to the literal text of the Constitution than does Supreme Court Justice Clarence Thomas. “Maybe I am labeled as an originalist or something, but it’s not my constitution to play around with,” he told David B. Rivkin and Lee A. Casey, who served in the Justice Department under President George H.W Bush.

“It’s our country, it’s our constitution,” Thomas continued in an interview for a Wall Street Journal op-ed on March 22. “I don’t feel I have any particular right to put my gloss on your constitution. My job is simply to interpret it. ... And when I can’t find something in that document or in the tradition or history around that document, then I am getting on dangerous ground. Because that’s when you drift so much more towards your own policy preferences. ... People can say you are an originalist, I just think that we should interpret the Constitution as it’s drafted, not as we would have drafted it.”

Thomas’s originalism inspired me to design a proposal for reversing a too-seldom-discussed 19th-century decision in which the Court did not interpret your 14th Amendment as it was drafted, but as all nine justices would have drafted it.

In 1886, just 18 years after the amendment became part of the Constitution, the Court was asked to decide whether a state could tax the property of a corporation differently than the property of flesh-and-blood. The decision in Santa Clara County v. Southern Pacific Railroad would seem to have been preordained. After all, the amendment speaks of “All persons born or naturalized in the United States.” The “persons” it was designed to protect were the newly-freed slaves. And the history of the Amendment—adopted soon after the end of the Civil War—”proves that the people were told that its purpose was to protect weak and helpless human beings and were not told that it was intended to remove corporations in any fashion from the control of state governments,” Justice Hugo L. Black would write in 1938, in Connecticut General Life Insurance Co. v. Johnson. “The Fourteenth Amendment followed the freedom of a race from slavery. ... Corporations have neither race nor color.”

Unlike Justice Thomas, the Santa Clara Court wasn’t originalist. Chief Justice Morrison R. Waite disposed of the issue with a thunderbolt proclamation with which, God-like, the Court transformed paper entities into persons: “The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a state to deny any person the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”

Nearly a century later, in 1978, the Court would legitimate corporate persons anew. At issue in First National Bank of Boston v. Bellotti was a Massachusetts criminal statute barring banks and business corporations from spending money to influence voting on referendum proposals. The state’s highest court had upheld the law. The Supreme Court struck it down, on the ground that it abridged the freedom of speech guaranteed by the First Amendment. The 5-to-4 majority did not address the question whether First National Bank’s freedom of religion had also been abridged. The opinion for the Court had this footnote: “It has been settled for almost a century that corporations are persons within the meaning of the Fourteenth Amendment. Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394 (1886).” 

The author of the opinion was Justice Lewis F. Powell Jr.. In 1971, while a corporate lawyer in Richmond, Va. (and a board member of Philip Morris), as Jeffrey Rosen recalled in the New York Times Magazine cover story on March 16, he had written a confidential memo to a leader of the US Chamber of Commerce who was a friend. Titled “Attack on the American Free Enterprise System,” the memo warned about the regulation of many industries that had increased during the 1960s. “The most disquieting voices joining the chorus of criticism,” he wrote, “came from perfectly respectable elements of society: from the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences, and from politicians.” Powell urged “constant surveillance” of textbook and television content, as well as a purge of left-wing elements.

Santa Clara’s transformation of corporations into persons—persons unable to breathe, eat, drink, sleep, think, worship, serve in the armed forces or be imprisoned or executed for criminal acts—was a radical exercise of judicial power. Unlike Chief Justice Waite and his colleagues who did not so much as “wish to hear argument,” the justices who decided Roe v. Wade, whether rightly or wrongly, did so only after being fully briefed, hearing argument, and long deliberating. It’s a contrast rarely noted by putative conservatives. One of their idols, Judge Robert H. Bork, has famously denounced Roe as “a wholly unjustified usurpation of state legislative authority.” Santa Clara was the same thing, so why the silence? Notably, another conservative idol was not silent, parting company from the Bellotti majority with a remarkable—and widely-ignored—dissent.

“Early in our history,” Chief Justice William H. Rehnquist wrote, “Mr. Chief Justice Marshall described the status of a corporation in the eyes of federal law: as ‘... an artificial being, invisible, intangible, and existing only in contemplation of law.’” He went on to say:

“A State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as an economic entity. It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere. Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist. ... I can see no basis for concluding that the liberty of a corporation to engage in political activity with regard to matters having no material effect on its business is necessarily incidental to the purposes for which the Commonwealth permitted these corporations to be organized or admitted within its boundaries.”

So, here is my proposal. After the 2008 elections, a congressional coalition led by authentic conservatives would pass, and the next president would sign, a law declaring that the provision in the 14th Amendment forbidding a state to deny any person the equal protection of the laws does not apply to corporations. Congress not being empowered to overturn a constitutional ruling of the Supreme Court, a lawsuit challenging the law would of course be filed and eventually reach the brethren. Even while rebuking Congress for over-stepping its bounds, the Court would seize the opportunity to reverse Santa Clara.

The opinion for an unanimous Court would of course be written by Justice Clarence Thomas. “I don’t feel I have any particular right to put my gloss on your 14th Amendment,” he would say in a subsequent interview for the Wall Street Journal. “I just think that we should interpret the Constitution as it’s drafted, not as we would have drafted it.”

Unfortunately, reality must intrude. Even in the extremely unlikely event that the case I imagined were to come before the Court—and even if it would no longer be “Supreme Court Inc.,” in the apt title of Professor Rosen’s article—the possibility that it would tolerate such a gross invasion by Congress into its constitutional jurisprudence and reverse Santa Clara is utterly remote if not nil.

In consequence, Dear Reader, I owe you, and you have, my contrite apology: The proposal is a fantasy. But while spinning it, I was hoping you would get a few laughs. You may have envisioned the bright light that news of the litigation would cast on our history during its ascent on the judicial ladder. You may have appreciated the reminder that you and ExxonMobil are equals, declared so by the 14th Amendment (as interpreted).

Morton Mintz, a senior advisor to niemanwatchdog.org, wrote about Bellotti while covering the Supreme Court for the Washington Post.

From The Progressive Populist, June 1, 2008

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